Y S Vijayalaxmi vs The State Of Telangana
2021 Latest Caselaw 688 Tel

          THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER


                  Criminal Petition No.11 of 2021

ORDER:

This Criminal Petition, under Section 482 of Cr.P.C., is filed by

the petitioners/A.1 and A.2, to quash the proceedings in C.C.No.1 of

2019 pending on the file of Special Judge for the Trial of Cases

against MPs/MLAs, Hyderabad, wherein, cognizance was taken

against the petitioners/A.1 and A.2 for the offences punishable under

Sections 188 and 341 of IPC and Section 127 of the Representation

of Peoples Act, 1951 ('R.P.Act', for brevity).

2. Heard the submissions of Sri S.Niranjan Reddy, learned senior

counsel, appearing for Sri N.Naveen Kumar, learned counsel for the

petitioners/A.1 and A.2, Sri C.Pratap Reddy, learned Public Prosecutor

representing the respondents and perused the record.

3. The facts of the case, in brief, are as follows:

"The petitioner No.1/A.1 is a former MLA of Pulivendula

Constituency and currently Chairperson of a political party. The

petitioner No.2/A.2 is the daughter of A.1 and also the Convenor of

Political party. On 08.06.2012, respondent No.2/Head Constable (HC

2680) Parkal Police Station, Warangal District, lodged a report with

Parkal Police Station against the petitioners stating that while he,

along with other police constables, was performing road clearance

bandobast duty near ATM Centre, Parkal, he found the petitioners

along with other accused conducting a rally without permission to

conduct a meeting on road obstructing general traffic and thereby

violating the rules and regulations of election code and caused

inconvenience to the public by obstructing the vehicles and requested Dr.SA, J

to take action in accordance with law. Pursuant to the said report,

the police, Parkal, registered a crime in FIR No.218 of 2012 against

the petitioners and others for the offences punishable under Sections

188, 341 of IPC and Section 127 of R.P.Act. The police, Parkal, after

investigation, filed charge-sheet on 20.06.2012 before the Magistrate

concerned, i.e., Judicial Magistrate of First Class, Parkal, who took

cognizance against the petitioners and others for the said offences,

vide order, dated 02.07.2012 in C.C.No.312 of 2012. Subsequently,

the said Calendar Case was transferred to the Court of Special Judge

for Trial of Cases against MPs & MLAs, Hyderabad, and renumbered

as C.C.No.1 of 2019."

4. The learned senior counsel appearing for the petitioners/A.1

and A.2 would submit that as per Section 195(1)(a)(i) of Cr.P.C., a

complaint is required to be made in writing by a public servant

concerned or some other public servant to whom is administratively

subordinate. In the instant case, no requisite complaint is filed as

required under Section 195(1)(a)(i) of Cr.P.C. to take cognizance for

the offence punishable under Section 188 of IPC. Furthermore, there

is no prima facie material and there are no ingredients to constitute

the offence punishable under Section 341 of IPC. The alleged action

of the petitioners is only obstructing the flow of traffic and the same

would not, in any way, constitute offence under Section 341 of IPC.

Further, Section 127 of R.P.Act relates to an offence for causing

disturbance at election meeting. As per the allegations on record, a

meeting was called for by the petitioners. Therefore, a case of

causing disturbance in election meeting is not made out against the

petitioners. The allegations leveled against the petitioners are ex

facie incorrect. The Court below, without application of mind, has Dr.SA, J

routinely and perfunctorily took cognizance of the alleged offences

against the petitioners, which is contrary to the established legal

principles and ultimately, prayed to quash the proceedings against

the petitioners in C.C.No.1 of 2019 pending on the file of the Court

below and allow the Criminal petition as prayed for. In support of his

submissions, the learned senior counsel has relied on the following

decisions.

1. Keki Hormusji Gharda and others Vs. Mehervan Rustom Irani and another1

2. Dr.Kodela Siva Prasad Rao and others Vs. Koritala Venkata Ramanaiah and another2

3. Pragada Nageshwara Rao Vs. State of A.P.3

5. On the other hand, the learned Public Prosecutor appearing for

the respondents would submit there are specific allegations against

the petitioners with regard to the commission of offences punishable

under Sections 188, 341 of IPC and 127 of R.P.Act. In order to prove

the innocence or otherwise of the petitioners, the petitioners are

required to undergo trial in the subject Calendar Case. The Court

below rightly took cognizance against the petitioners/A.1 and A.2 for

the alleged offences and proceeding with the case. None of the

submissions made on behalf of the petitioners merit consideration

and ultimately, prayed to dismiss the criminal petition. In support of

his submissions, the learned Public Prosecutor had relied on the

following decisions:

1. Ghanshyam Sharma Vs. Surendra Kumar Sharma and others4

2. Darshan Singh Saini Vs. Sohan Singh and others5

3. Durgacharan Naik and others Vs. State of Orissa6

4. Pankaj Aggarwal and others Vs. State of Delhi and others7

5. Major Vijay Singh Mankotia and others Vs. State of H.P.8

(2009) 6 Supreme Court Cases 475

(2006) 2 ALD 692

Decision dated 10.07.2018 passed in Crl.P.No.4278 of 2018 by the erstwhile common High Court for the States of Telangana and Andhra Pradesh

2014 AIR SCW 5969

2015 (14) SC 570

AIR 1986 SC 1775

2001 (4) SCALE 235 Dr.SA, J

6. K.Muhammed Aslam and another Vs. State rep. by Public Prosecutor9

6. In view of the submissions made by both sides, the following

points have come up for determination in this Criminal petition.

1. Whether there is a complaint in writing as required under Section 195(1)(a)(i) of Cr.P.C. to proceed against the petitioners for the offence under Section 188 of IPC?

2. Whether there are requisite ingredients against the petitioners so as to constitute offences under Sections 341 of IPC and 127 of R.P.Act?

3. Whether the proceedings against the petitioners in C.C.No.1 of 2019 pending on the file of Special Judge for the trial of cases against MPs/MLAs, Hyderabad, are liable to be quashed?

POINTS:-

7. The Apex Court in Pankaj Aggarwal and others Vs. State of

Delhi and others10 and Durgacharan Naik and others Vs. State

of Orissa11 held that there shall be a written complaint by

appropriate authority as required under Section 195(1)(a)(i) of

Cr.P.C. to take cognizance for the offence punishable under Section

188 of IPC. Admittedly, in the instant case, no complaint was filed as

required under Section 195(1)(a)(i) of Cr.P.C. Without there being

such written complaint, cognizance was taken by the Court below for

the offence punishable under Section 188 of IPC along with other

offences.

8. Section 195(1)(a)(i) of Cr.P.C. mandates filing of a complaint in

writing by a public servant and the police cannot register an FIR and

investigate the case and thereafter file report, in case where the

2002 Crl.L.J. 3165

Decision dated 24.03.2010, passed in Crl. MC. No.641/2010 by Kerala High Court

2001(4) SCALE 235

AIR 1966 SC 1775 Dr.SA, J

alleged offence is under Section 188 of IPC. A complaint in writing by

a public servant is essential for a Magistrate to take cognizance of the

offence under Section 188 of IPC. In the instant case, though the

petitioners are being proceeded for the offence under Section 188 of

IPC along with other offences, the requirements under Section

195(1)(a)(i) of Cr.P.C are required to be satisfied to take cognizance

for the offence under Section 188 of IPC. Admittedly, there is no

complaint in writing by a public servant. Therefore, registration of

FIR, filing of Final Report as well as taking cognizance of the offence

under Section 188 of IPC against the petitioners are unsustainable.

Hence, cognizance taken against the petitioners for the offence under

Section 188 of IPC is liable to be quashed.

9. The material placed on record reveals that on 08.06.2012 at

about 08:00 PM, the petitioners, along with the other accused,

without obtaining requisite permission from the concerned

authorities, stopped their election campaigning vehicles on the main

road at ATM Centre, Parkal, and started delivering speeches, which

caused obstruction to flow of traffic and thereby caused

inconvenience to the general public. Section 339 of IPC defines the

term 'wrongful restraint' and Section 341 of IPC prescribes

punishment for the said offence. According to Section 339 of IPC,

whoever voluntarily obstructs any person so as to prevent that person

from proceeding in any direction in which that person has a right to

proceed, is said wrongfully to restrain that person. To establish the

offence of wrongful restraint it should be proved that there was an

obstruction; the obstruction prevented the person/complainant from

proceeding in any direction; and that the person/complainant so

proceeding, must have a right to proceed in the direction concerned.

Dr.SA, J

Keeping in view the said provision of law if we look at the allegations

leveled against the petitioners, it is amply clear that that there are

necessary ingredients to constitute the offence punishable under

Section 341 of IPC against the petitioners. So, cognizance taken

against the petitioners for the offence under Section 341 of IPC

cannot be faulted.

10. Section 127 of R.P.Act reads as follows:

" Disturbance at election meetings: Any person who at a public meeting to which this section applies acts, or incites others to act, in a disorderly manner for the purpose of preventing the transaction of the business for which the meeting was called together shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees or with both."

A plain reading of the above provision of law makes it clear that there

are no allegations against the petitioners in the charge sheet, which

are sufficient to attract the above said provision. Section 127 of

R.P.Act is referable to disturbances at election meetings, which is not

the case of the prosecution at all. Further, the allegation is that a

rally was taken out and a meeting was conducted on road obstructing

general traffic. Hence, the cognizance taken against the petitioners

for the offence under Section 127 of R.P.Act is liable to be quashed.

11. I have gone through the citations relied upon by the learned

senior counsel appearing for the petitioners/A.1 and A.2. In Keki

Hormusji Gharda's case (1 supra), the appellants were Managing

Director and Directors of a Limited Company, which owned a villa.

The said villa was occupied by the first respondent therein. When the

appellants, in the capacity of Managing Director and Directors, took a

decision on behalf of the Company to get repaired the road leading to

the Villa though a contractor, first respondent opposed the same.

Dr.SA, J

When the repair work was going on, the first respondent lodged a

report with the police concerned and initiated criminal proceedings

against the appellants and also the architect, alleging that they have

committed offence of 'wrongful restraint' under Sections 339 and 341

of IPC. Under those circumstances, the Hon'ble Apex Court held that

the term 'voluntary' in Section 339 of IPC connotes direct physical

restraint and that there should be restriction on normal movement of

a person and that when the accused persons had taken only a

decision on behalf of the Company to get the road repaired and the

said repair might have caused some inconvenience but not physical

obstruction to the first respondent, it cannot be said that a case

under Section 339 and 341 of IPC had been made out against the

appellants. In the instant case, the allegations against the

petitioners/A.1 and A.2 are that they, along with the other accused,

were conducting a rally without permission to conduct a meeting on

road obstructing general traffic and caused inconvenience to the

public by obstructing the movement of vehicles. In view of the same,

the said decision is distinguishable from the instant case, on facts.

The other two decisions in Dr.Kodela Siva Prasad Rao's case (2

supra) and Pragada Nageshwara Rao's case (3 supra) relied by the

learned senior counsel are also distinguishable from the fact and

circumstances of the case on hand.

12. Coming to the decisions relied by the learned Public Prosecutor

in support of his submissions, in Ghanshyam Sharma's case (4

supra), the Hon'ble Apex Court held that charge-sheet filed by the

police is not conclusive of the offences for which the accused is to be

tried and ;that the Court has to either frame proper charge or

discharge accused or ask for further investigation. In Darshan Dr.SA, J

Singh Saini's case (5 supra), the Hon'ble Apex Court held that

Section 216 of Cr.P.C. postulates that it is open any Court to alter or

add to any charge, at any time before the judgment is pronounced.

In Durgacharan Naik's case (6 supra), the Hon'ble Apex Court held

that Section 195 of Cr.P.C. does not bar the trial of an accused

person for a distinct offence disclosed by the same or slightly

different set of facts and which is not included within the ambit of the

Section, but provisions of Section 195 cannot be evaded by resorting

to devices or camouflage. In Pankaj Aggarwal's case (7 supra), the

Hon'ble Apex Court found fault with the order taking cognizance for

the offence under Section 186 of IPC for want of requirements under

Section 195(1)(a)(i) of Cr.P.C. and accordingly quashed the same.

13. In view of the foregoing discussion and reasons, cognizance

taken against the petitioners/A.1 and A.2 for the offences punishable

under Sections 188 of IPC and 127 of Representation of Peoples Act,

1951, are quashed. The Court below is entitled to proceed against

the petitioners/A.1 and A.2 for the offence punishable under Section

341 of IPC, in accordance with law.

14. In the result, the Criminal Petition is partly allowed, as

indicated above.

Miscellaneous Petitions, if any, pending in this Criminal Petition

shall stand closed.

____________________ Dr. SHAMEEM AKTHER, J 04th March, 2021 Bvv